INADEQUATE RISK ASSESSMENT LEADS TO LIABILITY BEING ESTABLISHED: CHISOLM -v- HANKINS CONSIDERED

In Chisholm v D & R Hankins (Manea) Ltd [2018] EWHC 3407 (QB) the High Court found liability established on the grounds of an inadequate risk assessment by the defendant employer.  The judge also made important observations about the relevance of statutory duties after s.69 of the ERRA 2013.

risk-assessment-2

 

“Breach of this regulation does not, in itself, give rise to a right of action in damages – see s69(3) Enterprise and Regulatory Reform Act 2013. The conclusions set out above on breach of duty are not based on the 1989 Regulations. Those regulations are, however, entirely consistent with the common law obligations and it is likely that if Hankins had given sufficient thought to its statutory obligations then, in this respect, it would have complied with its common law duty of care to Mr Chisholm.”

 

THE CASE

The claimant was seriously injured when cleaning the trailer of a tipper truck.  As he tipped the trailer it touched, or came into close proximity with, an overhead power line (OHPL). This led to the claimant suffering a severe electric shock, and serious injuries including amputation, burns and scarring.

THE DEFENDANT’S FAILURE TO CARRY OUT A RISK ASSESSMENT

The judge found that the claimant’s employer had failed to carry out an adequate risk assessment.

“Risk assessment
    1. Mr Lawson relies on the duty to carry out a risk assessment recognised by the Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6[2016] 1 WLR 597 per Lord Reed and Lords Hodge JJSC (with whom all of the other Justices agreed) at [110]-[111]:
“110. …it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees… The requirement to carry out such an assessment… forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore… logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.
111. It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken… A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious…
  1. Here, there was no specific assessment of the risks associated with cleaning out trailers whilst parked on the highway. That was an activity that gave rise to risk, particularly as it was reasonably foreseeable that drivers would tip their vehicles to assist with the cleaning process. The job of cleaning out trailers ought to have been the subject of risk assessment. The failure to do so was a breach of duty.
  2. Hankins did make an assessment of the risks associated with tipping. Mr Lawson points out that the risk assessment refers only to the Manea site. I accept, however, that the assessment can be taken as a general assessment of the risks associated with tipping which was of general application and was not limited to the Manea site. I accept the submission of Mr Hunter QC that it would have been impracticable to have carried out separate risk assessments for every site where a driver might carry out a tipping operation.
  3. In order to undertake a reliable risk assessment Hankins was obliged to “seek out knowledge of risks which are not themselves obvious.” That is so as a matter of general common law obligation. It ought, at the very least, to have consulted readily available guidance, particularly the guide to workplace transport safety and the section in that guidance on “tipping”. That section identifies the risks not just of contact with OHPLs, but of coming into close proximity with OHPLs. It cross-refers to the other specific guidance in relation to OHPLs that I have identified at paragraphs 26-31 above.
  4. As it was, the risk assessment simply referred to “contact” with OHPLs. It did not identify or consider the risk of coming into close proximity with OHPLs. It then identified that the controls of the risk were limited to drivers being briefed on the tipping code of practice. Again, however, that document does not address the risk of coming into close proximity with OHPLs.
  5. The relevant guidance was available and should have been considered, certainly following Mr Nunn’s accident. Mr Howlett explained that it was considered following Mr Chisholm’s accident. There was no good reason for not considering it after Mr Nunn’s accident.
  6. In any event, Mr Howlett, who was the person primarily responsible for health and safety at Hankins, accepted that he was “aware before the accident that you should keep a 10 metre exclusion zone.” He accepted that avoiding contact with OHPLs was not sufficient to control the risk of electricity arcing and he therefore accepted that the risk assessment did not adequately deal with that risk.
  7. It follows that there was no sufficient assessment of the risks and of the need to instruct drivers to maintain an exclusion zone from OHPLs when tipping. This was a further breach of duty.”

UNSAFE SYSTEM OF WORK

The judge also found that the defendant employer had failed to provide a safe system of work.

    1. It would have been a safe system of work if drivers had been instructed not to tip their vehicles when cleaning and if this instruction had been enforced. However, this was not done, at least not in relation to Mr Chisholm. I find that Mr Chisholm was never told that he must not tip his trailer when cleaning it out. It was therefore necessary (as an alternative to an instruction not to tip) for Hankins to adopt a safe system of work for tipping.
    2. It would also have been a safe system of work if drivers had been instructed to maintain a 10 metre exclusion zone from OHPLs when carrying out tipping. Mr Hunter QC says that this was impracticable because (1) it would have severely limited the locations where tipping could be carried out, and (2) it would rely on drivers being able to make fine distinctions as to whether a distance was 9½ metres (and therefore unsafe) or 10½ meters (and therefore safe). I disagree. The vast majority of locations where a driver might carry out tipping are not within 10 meters of an OHPL. Where they are within 10m of an OHPL then there is nothing impracticable in either (a) the driver having to move to a separate location, or (b) the driver being instructed to take very particular and careful precautions (as explained in the guidance). Moreover, the whole point of a 10 metre exclusion zone (which allows for a margin of error) is to avoid drivers having to make precise estimations of distances. The alternative that was adopted was to require drivers to make their own assessment of whether tipping was safe, but without giving them the information necessary to make that assessment. That was not a safe system of work.
    3. It was further suggested that the guidance was more concerned with earth works and other works of that nature. However, the guidance specifically refers to tipper trailers (see paragraph 25 of Guidance Note GS6) and I can, in any event, see no good reason why it should not be applied to this type of activity.
    4. If it really was thought impracticable to require a 10 metre exclusion zone then there are other alternatives that could have been adopted (including different exclusion zones for different types of OHPL, with a minimum 3 metre exclusion zone for 11kV lines). However, this would have required careful analysis and assessment. This simply was not done. The system of work that was in place was unsafe and in breach of Hankins’ duty to Mr Chisholm.
    5. Mr Lawson relies on regulation 4(3) Electricity at Work Regulations 1989. That states:
“Every work activity, including operation, use and maintenance of a system and work near a system, shall be carried out in such a manner as not to give rise, so far as is reasonably practicable, to danger.”
  1. Breach of this regulation does not, in itself, give rise to a right of action in damages – see s69(3) Enterprise and Regulatory Reform Act 2013. The conclusions set out above on breach of duty are not based on the 1989 Regulations. Those regulations are, however, entirely consistent with the common law obligations and it is likely that if Hankins had given sufficient thought to its statutory obligations then, in this respect, it would have complied with its common law duty of care to Mr Chisholm.”

CAUSATION

It is not enough for a claimant to establish a breach, it also has to be established that the breaches were a material cause of the injury.  The judge found that if a proper risk assessment had been carried out and a safe system of work introduced then this incident would have been avoided.

  1. If a sufficient risk assessment had been carried out into the task of cleaning then it would have been appreciated that it was reasonably foreseeable that drivers would tip their trailers. This would then have resulted in drivers being expressly forbidden from tipping their trailers, or from doing so beyond a very limited degree.
  2. If a sufficient risk assessment had been carried out into the dangers posed by OHPLs then the need not just to avoid touching OHPLs, but also to maintain an exclusion zone, would have been identified. This would or should have resulted in drivers being instructed to maintain an exclusion zone. The likelihood is that drivers would have been instructed to maintain a horizontal exclusion zone of 10 metres from all OHPLs (possibly with caveats if that was absolutely impossible). That is the simplest clearest and easiest way of managing and controlling the risk and it is likely to have been the method adopted if the risk had been identified. It would, however, have been open to Hankins to adopt different exclusion zones for different types of OHPL. That could still be a safe system of work, but it would then be necessary to give clear instruction and training to drivers as to the different exclusion zones. The appropriate exclusion zone for the OHPLs that are relevant to this case would have been 3 metres.
  3. Accordingly, if Hankins had adequately assessed the risks and had adopted a safe system of work it would have instructed drivers not to tip their trailers when cleaning (or not to do so beyond a very small amount) and/or to maintain a horizonal exclusion zone from all OHPLs of at least 10 metres when tipping (or else to maintain exclusion zones according to the type of OHPL, with 3 metres being the appropriate distance in this case).
  4. Mr Howlett suggested in his evidence that Mr Chisholm did not take too kindly to instruction or additional training. However, Hankins fairly stressed in its evidence to the HSE that it regarded him as “always” having been “a very good and confident employee” and that there was only one occasion in the many years he had worked for Hankins when there had been any cause for concern (see paragraph 22 above). I am therefore entirely satisfied that if Mr Chisholm had been given a clear instruction that he must not tip his trailer when cleaning then he would have obeyed that instruction. The accident would then not have happened. Similarly, if he had been given a clear instruction that he should maintain a 10 metre (or even a 3 metre) exclusion zone then he would not have tipped his trailer. I do not have precise measurements of the distances at the scene of the accident, including in particular the horizontal distance between the OHPLs visible from the cab, and the cab. However, from the photographic evidence it is reasonably clear that this distance is unlikely to have been significantly more than the width of the road, and that is certainly substantially less than 10 metres. Whether the distance is less than 3 metres might be a little more difficult to assess, but it is not necessary to make a definitive finding. What is important is what effect an instructed exclusion zone of 3 metres would have had on Mr Chisholm. I am satisfied that he would then have appreciated that it was necessary not just to avoid contact with the wires, but to maintain an exclusion zone of at least 3 metres. He would have realised that the wires he could see from his cab may well have been within a horizontal distance of 3 metres. He would then either have simply chosen somewhere else to park, or else would have paid much more attention to the OHPLs, either on his approach to the layby, or by getting out of his cab after parking. In either event he would have noticed the danger and would not have tipped his vehicle in that location.
  5. I am therefore satisfied that Mr Chisholm has established that Hankins’ breaches of duty were a material cause of his accident.
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